COVID-19 decision making: Who is essential?

Eden Elliott - Tuesday, September 01, 2020

As employers, it can be difficult to classify any of your employees’ work as non-essential when every member of your team brings valuable individual strengths. These decisions can also pose significant risks where employers and employees want different things, sometimes leading to employees submitting appeals or complaints about their employer’s determination.

Image: balanced decision-making

We have all been surprised by COVID-19, and many employers have found a need to quickly develop  working from home and pandemic policies to support their decision-making around who stays home and who goes to work. What should these policies include?

  • Employers should always base their decision making on government directions at the applicable time, and appoint a designated officer to monitor and record new guidelines as they are issued. You don’t want to get caught having relied on old advice, or missed a crucial development. Any policies should be driven by this process of checking and applying guidelines, and identifying responsible decision-makers.
  • Review your other policies and make sure they capture the right circumstances. Does your definition of misconduct or bullying include online and remote behaviour? How are you upholding your data privacy obligations for staff working from home? Does your sick leave policy accommodate staff getting tested and waiting for results?
  • For larger organisations, it might be appropriate to decide working arrangements based on specific employee roles, which can provide employees with certainty and consistency around their futures. This can also increase practicality by allowing simpler identification of the working from home needs of each role.
  • Consultation is key to avoiding complaints, which means the policy should provide for employees to have the opportunity to request and make their case for how they prefer to work regardless of their role. These submissions should be kept private and confidential, and should invite employees to nominate practical, health & wellbeing, productivity and any other reasons. However, employers must take care to demonstrate that these submissions have been considered in any subsequent decision, and not ignored.
  • Put measures in place to support your staff while working from home and from the office in pandemic circumstances. Check in with them regularly, acknowledge the difficulties they face, and never forget to recognise their successes. Consider Employee Assistance Programs. Many employers have increased accountability measures for staff working at home, and it is  important to minimise feelings of micromanagement by recognising that these can also be a tool for identifying & addressing increased stressors and other difficulties that take up your employees’ time.
  • Put your duty of care first. At the end of the day, the wellbeing and safety of employees must take precedence, regardless of the short term frustration, decreased productivity and cultural changes to which working from home can contribute. The pandemic will not last forever, and an employer’s response to crises can have a significant impact on employee loyalty, retention and recruitment options in the future.
  • Get expert advice. If you find it difficult to build your processes, or if you receive complaints from staff, WISE can assist in reviewing decisions and policies to help meet employer obligations.

Call WISE on 1300 580 685 to help you develop your pandemic policy or respond to staff complaints.

Dealing with Pornography in the Workplace

Vince Scopelliti - Thursday, November 21, 2019

Unsurprisingly, the access to pornography can be extremely problematic in the workplace. Not only does the access to pornography at work open up a minefield of possible harassment and other sexually motivated complaints, it contributes significantly to presenteeism (where staff are physically present but not concentrating on their jobs).

Indeed, according to a report in the Financial Times, 45% of daily viewers of popular pornography compilation site Pornhub, accessed the site between standard business hours of 9am to 6pm. In addition, staff accessing using company resources to access unauthorised websites, can pose a significant cyber security risk to businesses.

Given the almost ubiquitous presence of smartphones and tablets in the workplace, it is becoming increasingly difficult for employers to address and manage the increasing issues related to pornography access in the workplace. Nonetheless, care and consideration must be taken when investigating allegations of employees having accessed pornography while at work. 

what does the fair work commission think?

The Australian employment relations tribunal has made its position on pornography being accessed in the workplace clear. For example, in the decision of Allan Croft v Smarter Insurance Brokers Pty Ltd (U2016/4415), Commissioner Cambridge commented that: "particularly if such conduct occurred in breach of the clearly stated and understood policy of the employer, an employee could expect to be disciplined or even dismissed for deliberately accessing, downloading and/or storing hard-core pornographic material on the employer's equipment, whether such conduct occurred within or outside of the ordinary hours of work"

It follows that there is clear support for termination of employment on the basis of accessing pornography - but only if there is a clearly drafted behaviour policy which explicitly prohibits the accessing of pornography on work equipment or during work hours. 

What role does company policy play?

It is not sufficient for an employer to simply discipline or dismiss an employee for accessing pornography at work, without having provided adequate notice of the company's position on pornographic materials.

This means that employers should have in place a clearly articulated and freely available policy on the topic of unacceptable workplace behaviour and conduct. That policy should explicitly set out what is considered improper use of company equipment, technology and Internet access. There should also be a statement to the effect that the use of company equipment and resources should be confined to work-related activities.

In addition to drafting the policies, it is essential that employees are both made aware of and understand them. Ideally, there should be regular training on what is considered to be acceptable behaviour in the workplace.

Action by employers 

Notwithstanding the support of case law, employers should still tread with caution in relation to disciplining or terminating employees for accessing and/or downloading pornography.

It is crucial that employers not act rashly by summarily dismissing staff without following due investigatory processes. When making decisions in relation to discipline or dismissal, the procedures set out in the relevant company policy must be adhered to. This will best protect the employer against subsequent proceedings for unfair dismissal.

Although employers should not deviate from usual investigation practices when dealing with pornography in the workplace, it is important that this type of behaviour is dealt with swiftly and decisively. This is in part because other employees who may be sent or otherwise exposed to pornography could also make claims for sexual harassment.

Addressing employee conduct regarding matters of internet usage and technology is a challenge for all modern workplaces. If your organisation requires assistance in enforcing policies to ensure matters of misconduct are dealt with in a fair and considered manner, WISE delivers training as well as investigation services to help you meet the challenges that arise in contemporary workplaces.